Opinion
The United States of America brought an action against Magdalen Bernauer. On a motion for summary judgment. The District Court, Fake, C. J., held that affidavits directed to well-pleaded allegations in complaint or answer cannot be read as to their truth on such a motion.
Motion denied.
Joseph Stein, Office of Housing Expediter, New York City, for plaintiff, Max W. Meisner, Newark, N.Y., and Emory Gardiner, New York City, of counsel.
Nicholas W. Kaiser, Newark, N. J., for defendant.
FAKE, Chief Judge.
This is a motion for summary judgment under Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A.
The record here discloses issues of fact controverted by the answer.
The affidavits cannot be read as to their truth when directed to the well-pleaded allegations in either the complaint or the answer. See Hart & Co. v. Recordgraph, 3 Cir., 169 F.2d 580; Reynolds Metals v. Metals Disintegrating Co., D. C., 8 F.R.D. 349, affirmed 3 Cir., 176 F.2d 90.
As to the alleged admissions the Court is without sufficient proof to function on the subject of restitution. See my opinion in U.S. v. Sabatino, D. C., 10 F.R.D. 274.
The motion for summary judgment is in all things denied.